The court rules that the smell of the pot alone cannot justify a search without a warrant

HARRISBURG, Pa. (AP) – The smell of marijuana may be a factor police use to justify a warrantless search, but it cannot be the sole basis, the Pennsylvania Supreme Court ruled on Wednesday.

The court said a state police search of a vehicle in Allentown three years ago was carried out only because soldiers smelled marijuana.

“The smell of marijuana on its own is not a probable cause for a warrantless search of the vehicle, but may rather be considered a factor in considering all of the circumstances,” wrote the Chief Justice. Max Baer for the majority.

Soldiers stopped the vehicle after it failed to stop at a solid white line before an overpass and smelled the smell of burning marijuana through a window, Baer said.

Police found a plastic bag containing less than a gram of marijuana next to the front center console, without any markings that would have indicated it had been purchased at a dispensary. They also recovered a loaded handgun under the driver’s seat.

The defendant, Timothy Oliver Barr II, and the driver, his wife, produced medical marijuana cards.

The trial court declared the search unconstitutional and said the evidence it produced could not be used in court, and dismissed the charge of possession of a small amount of marijuana.

The Lehigh County District Attorney’s Office argued that the drug remains illegal for the most part in the state, even though medical marijuana cardholders can legally possess it. In a brief, prosecutors argued that the smell of marijuana “has not lost its ‘incriminating’ smell because of its legality to some,” because it is illegal for most.

The majority of the Supreme Court said there were sufficient grounds to support the trial judge’s decision that the soldiers searched the vehicle based solely on the smell. The majority reinstated the order to suppress the evidence.

In a separate opinion, Judge Kevin Dougherty noted that the marijuana recovered during the research was not in packaging provided by a licensed dispensary.

“When an agent who smells of marijuana also observes its packaging (or lack thereof) and there is no barcode or other identifying information that typically appears on the original packaging of ‘a dispensary, that might be enough to establish probable cause,’ Dougherty wrote.

Mark Scolforo, The Associated Press